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May 11, 2017

GOP lawmakers: HHS policy 'substantially chills' contact with Congress, may be illegal

Daily Briefing

    Two Republican lawmakers are raising legal concerns over a recent HHS memo that instructed department employees not to speak with members of Congress unless they first consult with HHS' Office of the Assistant Secretary for Legislation.

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    Memo details

    The memo, which HHS Chief of Staff Lance Leggitt sent to department staff on May 3, stated, "Any communications with members of Congress and staff should not occur without prior consultation" with HHS' legislative affairs office. According to the memo, affected communications include briefings, meetings, phone calls, and technical assistance. The memo did not include language about any exceptions for protected and lawful communications with Congress, Modern Healthcare reports.

    The memo added that HHS employees' "cooperation" with the directive would help the department "avoid unnecessary problems in [its] relationships with Congress."

    Lawmakers raise concerns

    House Oversight and Government Reform Committee Chair Jason Chaffetz (R-Utah) and Senate Judiciary Committee Chair Chuck Grassley (R-Iowa) in a letter sent Thursday to HHS Secretary Tom Price wrote, "Federal employees have a constitutional right to communicate directly with Congress." As such, the lawmakers wrote that the memo's instructions to employees might be "illegal and unconstitutional, and will likely chill protected disclosures of waste, fraud, and abuse."

    While the lawmakers acknowledged that the memo does not "ultimately prohibit" HHS staff from directly communicating with Congress, they wrote that the memo "forces employees to expose their communications with Congress to agency management, necessarily subjecting them to a significantly increased risk of reprisal." They continued, "Protecting whistleblowers who courageously speak out is not a partisan issue—it is critical to the functioning of our government."

    To mitigate any potential confusion, the lawmakers asked HHS to send written guidance to agency staff that makes it clear the employees have a right to communicate "directly and independently with Congress" and that HHS would not retaliate against employees who report potential problems occurring within the agency. In addition, the lawmakers asked Price by May 18 to explain why the original memo was sent, as well as to give lawmakers all communications and documents relating to the memo.

    HHS' response

    HHS spokesperson Amanda Smith said the memo is in line with agency policy that has been in place for years, adding that a similar memo was issued under former President Bill Clinton. She said the memo is intended to inform staff of the Office of the Assistant Secretary for Legislation's role in overseeing communications regarding policy with Congress. "Transitions between administrations can mean significant staff turnover, which often leads to confusion and a breakdown of communications," she said.

    Smith said HHS would respond to the lawmakers' letter. She added, "If an HHS employee has concerns about waste, fraud, or abuse at the agency, we want them to contact the appropriate officials so it can be stopped" (Siddons, Roll Call, 5/9; Dickson, Modern Healthcare, 5/8; Freking, AP/Washington Times, 5/9; Eilperin, Washington Post, 5/9).

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